The High Court has upheld the constitutionality of Section 323 of the Penal Code, which criminalises possession of property reasonably suspected to have been stolen or unlawfully obtained.
In a judgment delivered on November 5, 2026, Milimani High Court Judge David Mburu dismissed a constitutional petition filed by Benjamin Okello and Gabriel Owade, alias OG Makowade, seeking to have the provision declared unconstitutional.
The petitioners had challenged the law, arguing that it violated constitutional protections, including the presumption of innocence, the right to remain silent and protection against self-incrimination.
They maintained that Section 323 unfairly shifts the burden of proof to accused persons by requiring them to explain their possession of property suspected to have been stolen.
However, Justice Mburu ruled that the provision can be interpreted and applied in a manner consistent with the Constitution, reaffirming an earlier High Court decision delivered in 2017 in the case of Isaac Robert Murambi v Attorney General & 3 Others.
The judge distinguished between the evidential burden placed on an accused person to explain possession and the ultimate legal burden, which remains with the prosecution to prove criminal culpability beyond reasonable doubt.
Justice Mburu further emphasised that reasonable suspicion must be based on identifiable facts and circumstances, noting that possession of another person’s property, on its own, does not automatically establish criminal wrongdoing.
The court also dismissed allegations that the Director of Public Prosecutions (DPP) had abused prosecutorial powers, finding that there was insufficient evidence to justify constitutional intervention.
Consequently, the ruling clears the way for criminal proceedings against Okello at the Makadara Chief Magistrate’s Court to continue.
The case was prosecuted by Prosecution Counsel Lavender Ijai, who secured her first judgment as a prosecutor.
The decision reinforces the legal framework governing offences involving suspected stolen property while reaffirming that the prosecution retains the obligation to prove criminal charges beyond reasonable doubt.
